Baxter v. Bracey

Cite as: 590 U. S. ____ (2020) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

ALEXANDER L. BAXTER v. BRAD BRACEY, ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

No. 18–1287. Decided June 15, 2020

The petition for a writ of certiorari is denied.

JUSTICE THOMAS, dissenting from the denial of certiorari.

Petitioner Alexander Baxter was caught in the act of bur-

gling a house. It is undisputed that police officers released

a dog to apprehend him and that the dog bit him. Petitioner

alleged that he had already surrendered when the dog was

released. He sought damages from two officers under Rev.

Stat. §1979, 42 U. S. C. §1983, alleging excessive force and

failure to intervene, in violation of the Fourth Amendment.

Applying our qualified immunity precedents, the Sixth Cir-

cuit held that even if the officers’ conduct violated the Con-

stitution, they were not liable because their conduct did not

violate a clearly established right. Petitioner asked this

Court to reconsider the precedents that the Sixth Circuit

applied.

I have previously expressed my doubts about our quali-

fied immunity jurisprudence. See Ziglar v. Abbasi, 582

U. S. ___, ___–___ (2017) (THOMAS, J., concurring in part

and concurring in judgment) (slip op., at 2–6). Because our

§1983 qualified immunity doctrine appears to stray from

the statutory text, I would grant this petition.

I

A

In the wake of the Civil War, Republicans set out to se-

cure certain individual rights against abuse by the States.

Between 1865 and 1870, Congress proposed, and the States

ratified, the Thirteenth, Fourteenth, and Fifteenth Amend-

ments. These Amendments protect certain rights and gave

2 BAXTER v. BRACEY

THOMAS, J., dissenting

Congress the power to enforce those rights against the

States.

Armed with its new enforcement powers, Congress

sought to respond to “the reign of terror imposed by the

Klan upon black citizens and their white sympathizers in

the Southern States.” Briscoe v. LaHue, 460 U. S. 325, 337

(1983). Congress passed a statute variously known as the

Ku Klux Act of 1871, the Civil Rights Act of 1871, and the

Enforcement Act of 1871. Section 1, now codified, as

amended, at 42 U. S. C. §1983, provided that

“any person who, under color of any law, statute, ordi-

nance, regulation, custom, or usage of any State, shall

subject, or cause to be subjected, any person within the

jurisdiction of the United States to the deprivation of

any rights, privileges, or immunities secured by the

Constitution of the United States, shall . . . be liable to

the party injured in any action at law, suit in equity, or

other proper proceeding for redress . . . .” Act of Apr.

20, 1871, §1, 17 Stat. 13.

Put in simpler terms, §1 gave individuals a right to sue

state officers for damages to remedy certain violations of

their constitutional rights.

B

The text of §1983 “ma[kes] no mention of defenses or im-

munities.” Ziglar, supra, at ___ (opinion of THOMAS, J.)

(slip op., at 2). Instead, it applies categorically to the dep-

rivation of constitutional rights under color of state law.

For the first century of the law’s existence, the Court did

not recognize an immunity under §1983 for good-faith offi-

cial conduct. Although the Court did not squarely deny the

availability of a good-faith defense, it did reject an argu-

ment that plaintiffs must prove malice to recover. Myers v.

Anderson, 238 U. S. 368, 378–379 (1915) (imposing liabil-

ity); id., at 371 (argument by counsel that malice was an

Cite as: 590 U. S. ____ (2020) 3

THOMAS, J., dissenting

essential element). No other case appears to have estab-

lished a good-faith immunity.

In the 1950s, this Court began to “as[k] whether the com-

mon law in 1871 would have accorded immunity to an of-

ficer for a tort analogous to the plaintiff ’s claim under

§1983.” Ziglar, supra, at ___ (opinion of THOMAS, J.) (slip

op., at 4). The Court, for example, recognized absolute im-

munity for legislators because it concluded Congress had

not “impinge[d] on a tradition [of legislative immunity] so

well grounded in history and reason by covert inclusion in

the general language” of §1983. Tenney v. Brandhove, 341

U. S. 367, 376 (1951). The Court also extended a qualified

defense of good faith and probable cause to police officers

sued for unconstitutional arrest and detention. Pierson v.

Ray, 386 U. S. 547, 557 (1967). The Court derived this de-

fense from “the background of tort liabilit[y] in the case of

police officers making an arrest.” Id., at 556–557. These

decisions were confined to certain circumstances based on

specific analogies to the common law.

Almost immediately, the Court abandoned this approach.

In Scheuer v. Rhodes, 416 U. S. 232 (1974), without consid-

ering the common law, the Court remanded for the applica-

tion of qualified immunity doctrine to state executive offi-

cials, National Guard members, and a university president,

id., at 234–235. It based the availability of immunity on

practical considerations about “the scope of discretion and

responsibilities of the office and all the circumstances as

they reasonably appeared at the time of the action on which

liability is sought to be based,” id., at 247, rather than the

liability of officers for analogous common-law torts in 1871.

The Court soon dispensed entirely with context-specific

analysis, extending qualified immunity to a hospital super-

intendent sued for deprivation of the right to liberty.

O’Connor v. Donaldson, 422 U. S. 563, 577 (1975); see also

Procunier v. Navarette, 434 U. S. 555, 561 (1978) (prison of-

ficials and officers).

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THOMAS, J., dissenting

Then, in Harlow v. Fitzgerald, 457 U. S. 800 (1982), the

Court eliminated from the qualified immunity inquiry any

subjective analysis of good faith to facilitate summary judg-

ment and avoid the “substantial costs [that] attend the liti-

gation of ” subjective intent, id., at 816. Although Harlow

involved an implied constitutional cause of action against

federal officials, not a §1983 action, the Court extended its

holding to §1983 without pausing to consider the statute’s

text because “it would be ‘untenable to draw a distinction

for purposes of immunity law.’ ” Id., at 818, n. 30 (quoting

Butz v. Economou, 438 U. S. 478, 504 (1978)). The Court

has subsequently applied this objective test in §1983 cases.

See, e.g., Ziglar, 582 U. S., at ___ (majority opinion) (slip

op., at 28). 1

II

In several different respects, it appears that “our analysis

is no longer grounded in the common-law backdrop against

which Congress enacted the 1871 Act.” Id., at ___ (opinion

of THOMAS, J.) (slip op., at 5).

There likely is no basis for the objective inquiry into

clearly established law that our modern cases prescribe.

Leading treatises from the second half of the 19th century

and case law until the 1980s contain no support for this

“clearly established law” test. Indeed, the Court adopted

the test not because of “ ‘general principles of tort immuni-

ties and defenses,’ ” Malley v. Briggs, 475 U. S. 335, 339

(1986), but because of a “balancing of competing values”

about litigation costs and efficiency, Harlow, supra, at 816.

There also may be no justification for a one-size-fits-all,

subjective immunity based on good faith. Nineteenth-

century officials sometimes avoided liability because they

exercised their discretion in good faith. See, e.g., Wilkes v.

——————

1 I express no opinion on qualified immunity in the context of implied

constitutional causes of action against federal officials. See, e.g., Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

Cite as: 590 U. S. ____ (2020) 5

THOMAS, J., dissenting

Dinsman, 7 How. 89, 130–131 (1849); see also Nielson &

Walker, A Qualified Defense of Qualified Immunity, 93

Notre Dame L. Rev. 1853, 1864–1868 (2018); Baude, Is

Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 57

(2018); Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1, 48–55 (1972).

But officials were not always immune from liability for their

good-faith conduct. See, e.g., Little v. Barreme, 2 Cranch

170, 179 (1804) (Marshall, C. J.); Miller v. Horton, 152

Mass. 540, 548, 26 N. E. 100, 103 (1891) (Holmes, J.); see

also Baude, supra, at 55–58; Woolhandler, Patterns of Offi-

cial Immunity and Accountability, 37 Case W. Res. L. Rev.

396, 414–422 (1986); Engdahl, supra, at 14–21.

Although I express no definitive view on this question,

the defense for good-faith official conduct appears to have

been limited to authorized actions within the officer’s juris-

diction. See, e.g., Wilkes, supra, at 130; T. Cooley, Law of

Torts 688–689 (1880); J. Bishop, Commentaries on Non-

Contract Law §773, p. 360 (1889). An officer who acts un-

constitutionally might therefore fall within the exception to

a common-law good-faith defense.

Regardless of what the outcome would be, we at least

ought to return to the approach of asking whether immun-

ity “was ‘historically accorded the relevant official’ in an

analogous situation ‘at common law.’ ” Ziglar, supra, at ___

(opinion of THOMAS, J.) (slip op., at 3) (quoting Imbler v.

Pachtman, 424 U. S. 409, 421 (1976)). The Court has con-

tinued to conduct this inquiry in absolute immunity cases,

even after the sea change in qualified immunity doctrine.

See Burns v. Reed, 500 U. S. 478, 489–492 (1991). We

should do so in qualified immunity cases as well. 2

——————

2 Qualified immunity is not the only doctrine that affects the scope of

relief under §1983. In Monroe v. Pape, 365 U. S. 167 (1961), the Court

held that an officer acts “ ‘under color of any statute, ordinance, regula-

tion, custom, or usage of any State’ ” even when state law did not author-

ize his action, id., at 183. Scholars have debated whether this holding is

6 BAXTER v. BRACEY

THOMAS, J., dissenting

* * *

I continue to have strong doubts about our §1983 quali-

fied immunity doctrine. Given the importance of this ques-

tion, I would grant the petition for certiorari.

——————

correct. Compare Zagrans, “Under Color of ” What Law: A Reconstructed

Model of Section 1983 Liability, 71 Va. L. Rev. 499, 559 (1985), with Win-

ter, The Meaning of “Under Color of ” Law, 91 Mich. L. Rev. 323, 341–

361 (1992), and Achtenberg, A “Milder Measure of Villainy”: The Un-

known History of 42 U. S. C. §1983 and the Meaning of “Under Color of ”

Law, 1999 Utah L. Rev. 1, 56–60. Although concern about revisiting one

doctrine but not the other is understandable, see Crawford-El v. Britton,

523 U. S. 574, 611 (1998) (Scalia, J., joined by THOMAS, J., dissenting),

respondents—like many defendants in §1983 actions—have not chal-

lenged Monroe.